SOUTH AFRICA

To give effect to section 9 read with item 23(1) of Schedule 6 to the Constitution
of the Republic of South Africa, 1996, so as to prevent and prohibit unfair
discrimination and harassment; to promote equality and eliminate unfair discrimination;
to prevent and prohibit hate speech; and to provide for matters connected therewith.

PREAMBLE

The consolidation of democracy in our country requires the eradication of social
and economic inequalities, especially those that are systemic in nature, which
were generated in our history by colonialism, apartheid and patriarchy, and
which brought pain and suffering to the great majority of our people;

Although significant progress has been made in restructuring and transforming
our society and its institutions, systemic inequalities and unfair discrimination
remain deeply embedded in social structures, practices and attitudes, undermining
the aspirations of our constitutional democracy;

The basis for progressively redressing these conditions lies in the Constitution
which, amongst others, upholds the values of human dignity, equality, freedom
and social justice in a united, non-racial and non-sexist society where all
may flourish;

South Africa also has international obligations under binding treaties and
customary international law in the field of human rights which promote equality
and prohibit unfair discrimination. Among these obligations are those specified
in the Convention on the Elimination of All Forms of Discrimination Against
Women and the Convention on the Elimination of All Forms of Racial Discrimination;

Section 9 of the Constitution provides for the enactment of national legislation
to prevent or prohibit unfair discrimination and to promote the achievement
of equality; This implies the advancement, by special legal and other measures,
of historically disadvantaged individuals, communities and social groups who
were dispossessed of their land and resources, deprived of their human dignity
and who continue to endure the consequences;

This Act endeavours to facilitate the transition to a democratic society, united
in its diversity, marked by human relations that are caring and compassionate,
and guided by the principles of equality, fairness, equity, social progress,
justice, human dignity and freedom,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,
as follows:--

(i) age includes the conditions of disadvantage and vulnerability suffered
by persons on the basis of their age, especially advanced age;

(ii) clerk of the equality court means a clerk of an equality court appointed
or designated in terms of section 17, read with section 31, and includes any
reference to a clerk;

(iii) Commission for Gender Equality means the Commission for Gender
Equality referred to in section 187 of the Constitution;

(iv) complainant means any person who alleges any contravention of this
Act and who institutes proceedings in terms of the Act;

(v) Constitution means the Constitution of the Republic of South Africa,
1996 (Act No. 108 of 1996);

(vi) constitutional institution means any of the relevant institutions
supporting constitutional democracy referred to in Chapter 9 of the Constitution
and includes the Pan South African Language Board;

(vii) Department means the Department of Justice and Constitutional Development;

(viii) discrimination means any act or omission, including a policy,
law, rule, practice, condition or situation which directly or indirectly--

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from,

any person on one or more of the prohibited grounds;

(ix) equality includes the full and equal enjoyment of rights and freedoms
as contemplated in the Constitution and includes de jure and de
facto equality and also equality in terms of outcomes;

(x) equality court means a court contemplated in section 16, read with
section 31, and includes any reference to court;

(xi) family responsibility means responsibility in relation to a complainants
spouse, partner, dependent, child or other members of his or her family in
respect of whom the member is liable for care and support;

(xii) family status includes membership in a family and the social, cultural
and legal rights and expectations associated with such status;

(xiii) harassment means unwanted conduct which is persistent or serious
and demeans, humiliates or creates a hostile or intimidating environment or
is calculated to induce submission by actual or threatened adverse consequences
and which is related to--

(a) sex, gender or sexual orientation; or

(b) a persons membership or presumed membership of a group identified
by one or more of the prohibited grounds or a characteristic associated
with such group;

(xiv) HIV/AIDS status includes actual or perceived presence in a persons
body of the Human Immunodeficiency Virus (HIV) or symptoms of Acquired Immune
Deficiency Syndrome (AIDS), as well as adverse assumptions based on this status;

(xv) marital status includes the status or condition of being single,
married, divorced, widowed or in a relationship, whether with a person of
the same or the opposite sex, involving a commitment to reciprocal support
in a relationship;

(xvi) Minister means the Minister for Justice and Constitutional Development;

(xvii) nationality means ethnic or national origin and includes practices
associated with xenophobia and other adverse assumptions of a discriminatory
nature but does not include rights and obligations normally associated with
citizenship;

(xviii) person includes a juristic person, a non-juristic entity, a group
or a category of persons;

(xix) pregnancy includes any condition related to pregnancy, intended
pregnancy, potential pregnancy or termination of pregnancy;

(xx) prescribed means prescribed by regulation in terms of this Act;

(b) any other ground where discrimination based on that other ground--

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a persons rights and freedoms
in a serious manner that is comparable to discrimination on a ground in
paragraph (a);

(xxiii) regulation means a regulation in terms of this Act;

(xxiv) respondent means any person against whom proceedings are instituted
in terms of this Act;

(xxv) sector means any sector referred to in section 29, and includes
the sectors set out in the Schedule;

(xxvi) socio-economic status includes a social or economic condition
or perceived condition of a person who is disadvantaged by poverty, low employment
status or lack of or low-level educational qualifications;

(a) any department of State or administration in the national, provincial
or local sphere of government;

(b) any other functionary or institution--

(i) exercising a power or performing a function in terms of the Constitution
or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms
of any legislation or under customary law or tradition;

(xxix) this Act includes any regulation made in terms of this Act.

Objects of Act

2. The objects of this Act are--

(a) to enact legislation required by section 9 of the Constitution;

(b) to give effect to the letter and spirit of the Constitution, in
particular--

(i) the equal enjoyment of all rights and freedoms by every person;

(ii) the promotion of equality;

(iii) the values of non-racialism and non-sexism contained in section 1
of the Constitution;

(iv) the prevention of unfair discrimination and protection of human dignity
as contemplated in sections 9 and 10 of the Constitution;

(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender
or religion, that constitutes incitement to cause harm as contemplated in
section 16(2)(c) of the Constitution and section 12 of this Act;

(c) to provide for measures to facilitate the eradication of unfair
discrimination, hate speech and harassment, particularly on the grounds of
race, gender and disability;

(d) to provide for procedures for the determination of circumstances
under which discrimination is unfair;

(e) to provide for measures to educate the public and raise public
awareness on the importance of promoting equality and overcoming unfair discrimination,
hate speech and harassment;

(f) to provide remedies for victims of unfair discrimination, hate
speech and harassment and persons whose right to equality has been infringed;

(g) to set out measures to advance persons disadvantaged by unfair
discrimination;

(h) to facilitate further compliance with international law obligations
including treaty obligations in terms of, amongst others, the Convention on
the Elimination of All Forms of Racial Discrimination and the Convention on
the Elimination of All Forms of Discrimination against Women.

Interpretation of Act

3. (1) Any person applying this Act must interpret its provisions to
give effect to--

(a) the Constitution, the provisions of which include the promotion
of equality through legislative and other measures designed to protect or
advance persons disadvantaged by past and present unfair discrimination;

(b) the Preamble, the objects and guiding principles of this Act,
thereby fulfilling the spirit, purport and objects of this Act.

(2) Any person interpreting this Act may be mindful of--

(a) any relevant law or code of practice in terms of a law;

(b) international law, particularly the international agreements referred
to in section 2 and customary international law;

(c) comparable foreign law.

(3) Any person applying or interpreting this Act must take into account the
context of the dispute and the purpose of this Act.

Guiding principles

4. (1) In the adjudication of any proceedings which are instituted in
terms of or under this Act, the following principles should apply:

(a) The expeditious and informal processing of cases, which facilitate
participation by the parties to the proceedings;

(b) access to justice to all persons in relevant judicial and other
dispute resolution forums;

(c) the use of rules of procedure in terms of section 19 and criteria
to facilitate participation;

(d) the use of corrective or restorative measures in conjunction with
measures of a deterrent nature;

(e) the development of special skills and capacity for persons applying
this Act in order to ensure effective implementation and administration thereof.

(2) In the application of this Act the following should be recognised and taken
into account:

(a) The existence of systemic discrimination and inequalities, particularly
in respect of race, gender and disability in all spheres of life as a result
of past and present unfair discrimination, brought about by colonialism, the
apartheid system and patriarchy; and

(b) the need to take measures at all levels to eliminate such discrimination
and inequalities.

Application of Act

5. (1) This Act binds the State and all persons.

(2) If any conflict relating to a matter dealt with in this Act arises between
this Act and the provisions of any other law, other than the Constitution or
an Act of Parliament expressly amending this Act, the provisions of this Act
must prevail.

(3) This Act does not apply to any person to whom and to the extent to which
the Employment Equity Act, 1998 (Act No. 55 of 1998), applies.

6. Neither the State nor any person may unfairly discriminate against
any person.

Prohibition of unfair discrimination on ground of race

7. Subject to section 6, no person may unfairly discriminate against
any person on the ground of race, including--

(a) the dissemination of any propaganda or idea, which propounds the
racial superiority or inferiority of any person, including incitement to,
or participation in, any form of racial violence;

(b) the engagement in any activity which is intended to promote, or
has the effect of promoting, exclusivity, based on race;

(c) the exclusion of persons of a particular race group under any
rule or practice that appears to be legitimate but which is actually aimed
at maintaining exclusive control by a particular race group;

(d) the provision or continued provision of inferior services to any
racial group, compared to those of another racial group;

(e) the denial of access to opportunities, including access to services
or contractual opportunities for rendering services for consideration, or
failing to take steps to reasonably accommodate the needs of such persons.

Prohibition of unfair discrimination on ground of gender

8. Subject to section 6, no person may unfairly discriminate against
any person on the ground of gender, including--

(a) gender-based violence;

(b) female genital mutilation;

(c) the system of preventing women from inheriting family property;

(d) any practice, including traditional, customary or religious practice,
which impairs the dignity of women and undermines equality between women and
men, including the undermining of the dignity and well-being of the girl child;

(e) any policy or conduct that unfairly limits access of women to
land rights, finance, and other resources;

(f) discrimination on the ground of pregnancy;

(g) limiting womens access to social services or benefits, such as
health, education and social security;

(h) the denial of access to opportunities, including access to services
or contractual opportunities for rendering services for consideration, or
failing to take steps to reasonably accommodate the needs of such persons;

(i) systemic inequality of access to opportunities by women as a result
of the sexual division of labour.

Prohibition of unfair discrimination on ground of disability

9. Subject to section 6, no person may unfairly discriminate against
any person on the ground of disability, including--

(a) denying or removing from any person who has a disability, any
supporting or enabling facility necessary for their functioning in society;

(b) contravening the code of practice or regulations of the South
African Bureau of Standards that govern environmental accessibility;

(c) failing to eliminate obstacles that unfairly limit or restrict
persons with disabilities from enjoying equal opportunities or failing to
take steps to reasonably accommodate the needs of such persons.

Prohibition of hate speech

10. (1) Subject to the proviso in section 12, no person may publish,
propagate, advocate or communicate words based on one or more of the prohibited
grounds, against any person, that could reasonably be construed to demonstrate
a clear intention to--

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

(2)Without prejudice to any remedies of a civil nature under this Act, the
court may, in accordance with section 21(2)(n) and where appropriate,
refer any case dealing with the publication, advocacy, propagation or communication
of hate speech as contemplated in subsection (1), to the Director of Public
Prosecutions having jurisdiction for the institution of criminal proceedings
in terms of the common law or relevant legislation.

Prohibition of harassment

11. No person may subject any person to harassment.

Prohibition of dissemination and publication of information that unfairly
discriminates

12. No person may--

(a) disseminate or broadcast any information;

(b) publish or display any advertisement or notice, that could reasonably
be construed or reasonably be understood to demonstrate a clear intention
to unfairly discriminate against any person: Provided that bona fide engagement
in artistic creativity, academic and scientific inquiry, fair and accurate
reporting in the public interest or publication of any information, advertisement
or notice in accordance with section 16 of the Constitution, is not precluded
by this section.

CHAPTER 3

BURDEN OF PROOF AND DETERMINATION OF FAIRNESS
OR

UNFAIRNESS

Burden of proof

13. (1) If the complainant makes out a prima facie case of discrimination--

(a) the respondent must prove, on the facts before the court, that
the discrimination did not take place as alleged; or

(b) the respondent must prove that the conduct is not based on one
or more of the prohibited grounds.

(2) If the discrimination did take place--

(a) on a ground in paragraph (a) of the definition of prohibited
grounds, then it is unfair, unless the respondent proves that the discrimination
is fair;

(b) on a ground in paragraph (b) of the definition of prohibited
grounds, then it is unfair--

(i) if one or more of the conditions set out in paragraph (b) of the
definition of prohibited grounds is established; and

(ii) unless the respondent proves that the discrimination is fair.

Determination of fairness or unfairness

14. (1) It is not unfair discrimination to take measures designed to
protect or advance persons or categories of persons disadvantaged by unfair
discrimination or the members of such groups or categories of persons.

(2) In determining whether the respondent has proved that the discrimination
is fair, the following must be taken into account:

(a) The context;

(b) the factors referred to in subsection (3);

(c) whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria, intrinsic
to the activity concerned.

(3) The factors referred to in subsection (2)(b) include the following:

(a) Whether the discrimination impairs or is likely to impair human
dignity;

(b) the impact or likely impact of the discrimination on the complainant;

(c) the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group that suffers from
such patterns of disadvantage;

(d) the nature and extent of the discrimination;

(e) whether the discrimination is systemic in nature;

(f) whether the discrimination has a legitimate purpose;

(g) whether and to what extent the discrimination achieves its purpose;

(h) whether there are less restrictive and less disadvantageous means
to achieve the purpose;

(i) whether and to what extent the respondent has taken such steps
as being reasonable in the circumstances to--

(i) address the disadvantage which arises from or is related to one or more
of the prohibited grounds; or

(ii) accommodate diversity.

Hate speech and harassment not subject to determination of fairness

15. In cases of hate speech and harassment section 14 does not apply.

CHAPTER 4

EQUALITY COURTS

Equality courts and presiding officers

16. (1) For the purposes of this Act, but subject to section 31--

(a) every magistrates court and every High Court is an equality court
for the area of its jurisdiction; and

(b) any magistrate, additional magistrate and judge may be designated
by the Minister, after consultation with the Judge President or the head of
an administrative region defined in section 1 of the Magistrates Courts Act,
1944 (Act No. 32 of 1944), concerned, as the case may be, as a presiding officer
of the equality court of the area in respect of which he or she is magistrate,
additional magistrate or judge, as the case may be.

(2) A presiding officer must perform the functions and exercise the powers
assigned to or conferred on him or her under this Act or any other law.

Clerks of equality courts

17. (1)

(a) Subject to the laws governing the public service, the Director-General
of the Department may, for every equality court, appoint or designate one
or more officers in the Department, or may appoint one or more persons in
the prescribed manner and on the prescribed conditions, as clerks of the equality
court, who must generally assist the court to which they are attached in performing
its functions and who must perform the functions as may be prescribed.

(b) If a clerk of an equality court is for any reason unable to act
as such or if no clerk has been appointed or designated for any equality court
under paragraph (a), the presiding officer concerned may designate
any competent officer in the Department to act as clerk for as long as the
said clerk is unable to act or until a clerk is appointed or designated under
paragraph (a), as the case may be.

Witnesses

18. The attendance of witnesses and the payment of witness fees in cases
arising from the application of this Act must be determined by the Minister
in the prescribed manner.

Rules and court proceedings

19. (1) Except as is otherwise provided in this Act, the provisions
of the Magistrates Courts Act, 1944 (Act No. 32 of 1944), and the Supreme Court
Act, 1959 (Act No. 59 of 1959), and of the rules made thereunder as well as
the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107
of 1985), apply with the necessary changes required by the context to equality
courts, in so far as these provisions relate to--

(a) the appointment and functions of officers;

(b) the issue and service of process;

(c) the execution of judgments or orders;

(d) the imposition of penalties for non-compliance with orders of
court, for obstruction of execution of judgments or orders, and for contempt
of court;

(e) jurisdiction, subject to subsection (3), and in so far as no other
provision has been made in the regulations under section 30 of this Act.

(2) All proceedings before the court must be conducted in open court, except
in so far as the court may direct otherwise in the interests of the administration
of justice.

(3)

(a) Subject to paragraph (b), nothing in this Act precludes
a magistrates court sitting as an equality court from making an order contemplated
in section 21(2), which exceeds the monetary jurisdiction of a magistrates
court, in which case the order must be submitted in the prescribed manner
to a judge of the High Court having jurisdiction for confirmation.

(b) The operation of paragraph (a), relating to the confirmation
of an order, is suspended until any appeal contemplated in section 23 is finalised.

Institution of proceedings in terms of or under Act

20. (1) Proceedings under this Act may be instituted by--

(a) any person acting in their own interest;

(b) any person acting on behalf of another person who cannot act in
their own name;

(c) any person acting as a member of, or in the interests of, a group
or class of persons;

(d) any person acting in the public interest;

(e) any association acting in the interests of its members;

(f) the South African Human Rights Commission, or the Commission for
Gender Equality.

(2) A person wishing to institute proceedings in terms of or under this Act
must, in the prescribed manner, notify the clerk of the equality court of their
intention to do so.

(3)

(a) The clerk of the equality court must, within the prescribed period
of receiving such notification, refer the matter to a presiding officer of
the equality court in question, who must, within the prescribed period, decide
whether the matter is to be heard in the equality court or whether it should
be referred to another appropriate institution, body, court, tribunal or other
forum (hereafter referred to as an alternative forum) which, in the presiding
officers opinion, can deal more appropriately with the matter in terms of
that alternative forums powers and functions.

(b) If the presiding officer decides that the matter is to be heard
in the equality court, the presiding officer must refer the matter to the
clerk of the equality court who must within the prescribed period of such
referral assign a date of hearing of the matter.

(4) The presiding officer, before making a decision to refer a matter as contemplated
in subsection (3), must take all relevant circumstances into account, including
the following:

(a) The personal circumstances of the parties and particularly the
complainant;

(b) the physical accessibility of any contemplated alternative forum;

(c) the needs and wishes of the parties and particularly the complainant;

(d) the nature of the intended proceedings and whether the outcome
of the proceedings could facilitate the development of judicial precedent
and jurisprudence in this area of the law;

(e) the views of the appropriate functionary at any contemplated alternative
forum.

(5)

(a) If the presiding officer decides that the matter must be referred
to an alternative forum he or she must, in the prescribed manner, make an
order, directing the clerk of the equality court to transfer the matter to
the alternative forum mentioned in the order.

(b) When making an order contemplated in paragraph (a), the
presiding officer may attach to the order any comments he or she deems necessary
for the attention of the alternative forum.

(6) On receipt of an order referred to in subsection (5), the clerk of the
equality court must transfer the matter and notify the parties to the matter
of the transfer in the prescribed manner.

(7) On receipt of a matter transferred to it, the alternative forum in question
must deal with the matter expeditiously in terms of its powers and functions.

(8) If the alternative forum referred to in subsection (7)--

(a) fails to deal with the matter within a reasonable period in the
circumstances; or

(b) is not able to resolve the matter to the satisfaction of one or
both the parties and one or both parties so request, the alternative forum
must, in the prescribed manner, refer the matter back to the equality court
from which it was transferred, for adjudication, within the prescribed period
from the date on which it was returned to the equality court.

(9) The State and constitutional institutions must, as far as reasonably possible,
assist any person wishing to institute proceedings in terms of or under this
Act, amongst others, by ensuring that the person is directed to the appropriate
functionary in order to take the necessary action in the furtherance of the
matter in question.

Powers and functions of equality court

21. (1) The equality court before which proceedings are instituted in
terms of or under this Act must hold an inquiry in the prescribed manner and
determine whether unfair discrimination, hate speech or harassment, as the case
may be, has taken place, as alleged.

(2) After holding an inquiry, the court may make an appropriate order in the
circumstances, including--

(a) an interim order;

(b) a declaratory order;

(c) an order making a settlement between the parties to the proceedings
an order of court;

(d) an order for the payment of any damages in respect of any proven
financial loss, including future loss, or in respect of impairment of dignity,
pain and suffering or emotional and psychological suffering, as a result of
the unfair discrimination, hate speech or harassment in question;

(e) after hearing the views of the parties or, in the absence of the
respondent, the views of the complainant in the matter, an order for the payment
of damages in the form of an award to an appropriate body or organisation;

(f) an order restraining unfair discriminatory practices or directing
that specific steps be taken to stop the unfair discrimination, hate speech
or harassment;

(g) an order to make specific opportunities and privileges unfairly
denied in the circumstances, available to the complainant in question;

(h) an order for the implementation of special measures to address
the unfair discrimination, hate speech or harassment in question;

(i) an order directing the reasonable accommodation of a group or
class of persons by the respondent;

(j) an order that an unconditional apology be made;

(k) an order requiring the respondent to undergo an audit of specific
policies or practices as determined by the court;

(l) an appropriate order of a deterrent nature, including the recommendation
to the appropriate authority, to suspend or revoke the licence of a person;

(m) a directive requiring the respondent to make regular progress
reports to the court or to the relevant constitutional institution regarding
the implementation of the courts order;

(n) an order directing the clerk of the equality court to submit the
matter to the Director of Public Prosecutions having jurisdiction for the
possible institution of criminal proceedings in terms of the common law or
relevant legislation;

(o) an appropriate order of costs against any party to the proceedings;

(p) an order to comply with any provision of the Act.

(3) An order made by an equality court in terms of or under this Act has the
effect of an order of the said court made in a civil action, where appropriate.

(4) The court may, during or after an inquiry, refer--

(a) its concerns in any proceedings before it, particularly in the
case of persistent contravention or failure to comply with a provision of
this Act or in the case of systemic unfair discrimination, hate speech or
harassment to any relevant constitutional institution for further investigation;

(b) any proceedings before it to any relevant constitutional institution
or appropriate body for mediation, conciliation or negotiation.

(5) The court has all ancillary powers necessary or reasonably incidental to
the performance of its functions and the exercise of its powers, including the
power to grant interlocutory orders or interdicts.

Assessors

22. (1) In any proceedings in terms of or under this Act, the court
may, at the request of either party, or of its own accord if the presiding officer
considers it to be in the interests of justice, summon to its assistance one
or two persons who are suitable and available and who may be willing to sit
and act as assessors.

(2) Assessors appointed in terms of subsection (1) are, subject to subsection
(3), deemed to be members of the court for purposes of this Act.

(3) Any matter of law arising for decision at the proceedings concerned and
any question as to whether a matter for decision is a matter of fact or a matter
of law must be decided by the presiding officer in the prescribed manner.

(4) On all matters of fact the finding or decision of the majority of the members
of the court is the finding or decision of the court, and in the event of one
assessor, the finding or decision of the court prevails.

(5)

(a) If an assessor dies, or in the opinion of the presiding officer
becomes unable to act as an assessor, or is for any reason absent, or has
been ordered to recuse himself or herself or has recused himself or herself,
at any stage before the completion of the proceedings concerned, the presiding
officer may, in the interests of justice and after due consideration of the
arguments put forward by the parties to the proceedings or their legal representatives--

(i) direct that the proceedings continue before the remaining member or
members of the court;

(ii) direct that the proceedings start afresh; or

(iii) if an assessor is absent, postpone the proceedings in order to obtain
the assessors presence.

(b) The presiding officer must give reasons for any direction referred
to in subparagraph (i) or (ii).

(6)

(a) A presiding officer who is assisted by assessors at an enquiry
where a party to the proceedings has an order made against him or her must
record the reasons for his or her opinion--

(i) if that party to the proceedings is not assisted by a legal representative;
and

(ii) if the presiding officer is of the opinion that the assessors concerned
have clearly made an incorrect finding.

(b) The clerk of the equality court must as soon as is practicable,
submit those reasons and the record to the appeal court in question for review
in the prescribed manner.

(c) The appeal court has the power to confirm the said findings or
to make any appropriate order in respect of such finding that, in the opinion
of the appeal court, should have been made in the circumstances.

Appeals and reviews

23. (1) Any person aggrieved by any order made by an equality court
in terms of or under this Act may, within such period and in such manner as
may be prescribed, appeal against such order to the High Court having jurisdiction
or the Supreme Court of Appeal, as the case may be.

(2) On appeal, the High Court or the Supreme Court of Appeal, as the case may
be, may make such order in the matter as it may deem fit.

(3) Notwithstanding subsection (1), any person aggrieved by any order made
by an equality court may, subject to the rules of the Constitutional Court,
appeal directly to the Constitutional Court.

(4) In the event of conflicting decisions being made by presiding officers
in matters in respect of paragraph (b) of the definition of prohibited
grounds, the Minister may refer a stated case to the Supreme Court of Appeal
or the Constitutional Court for a determination.

(5)

(a) If a presiding officer in a magistrates court makes a determination
relating to a ground of discrimination referred to in paragraph (b) of
the definition of prohibited grounds, the decision must, after the finalisation
of the proceedings and in the prescribed manner, be submitted to the High
Court having jurisdiction for review.

(b) The High Court in question must, after considering the matter,
make a determination in respect of the ground referred to in subsection (5)(a)
and thereafter may make any order in terms of this Act as it deems fit.

(c) The operation of subsection (5)(a) is suspended until any
appeal contemplated in this section is finalised.

CHAPTER 5

PROMOTION OF EQUALITY

General responsibility to promote equality

24. (1) The State has a duty and responsibility to promote and achieve
equality.

(2) All persons have a duty and responsibility to promote equality.

Duty of State to promote equality

25. (1) The State must, where necessary with the assistance of the relevant
constitutional institutions--

(a) develop awareness of fundamental rights in order to promote a
climate of understanding, mutual respect and equality;

(b) take measures to develop and implement programmes in order to
promote equality; and

(2) The South African Human Rights Commission and other relevant constitutional
institutions may, in addition to any other obligation, in terms of the Constitution
or any law, request any other component falling within the definition of the
State or any person to supply information on any measures relating to the achievement
of equality including, where appropriate, on legislative and executive action
and compliance with legislation, codes of practice and programmes.

(3) In addition to the powers and functions of the constitutional institutions
these institutions are also competent to--

(a) assist complainants in instituting proceedings in an equality
court, particularly complainants who are disadvantaged;

(b) conduct investigations into cases and make recommendations as
directed by the court regarding persistent contraventions of this Act or cases
of unfair discrimination, hate speech or harassment referred to them by an
equality court;

(c) request from the Department, in the prescribed manner, regular
reports regarding the number of cases and the nature and outcome thereof.

(4) All Ministers must implement measures within the available resources which
are aimed at the achievement of equality in their areas of responsibility by--

(a) eliminating any form of unfair discrimination or the perpetuation
of inequality in any law, policy or practice for which those Ministers are
responsible; and

(b) preparing and implementing equality plans in the prescribed manner,
the contents of which must include a time frame for implementation of such
plans, formulated in consultation with the Minister of Finance.

(5)

(a) The equality plans must, within two years after the commencement
of this Act, be submitted to the South African Human Rights Commission to
be dealt with in the prescribed manner.

(b) The South African Human Rights Commission must consult with the
Commission on Gender Equality when dealing with the plans contemplated in
paragraph (a).

Responsibility of persons operating in public domain to promote equality

26. It is the responsibility of any person directly or indirectly contracting
with the State or exercising public power to promote equality by--

(a) adopting appropriate equality plans, codes, regulatory mechanisms
and other appropriate measures for the effective promotion of equality in
the spheres of their operation;

(b) enforcing and monitoring the enforcement of the equality plans,
codes and regulatory mechanisms developed by them; and

(c) making regular reports to the relevant monitoring authorities
or institutions as may be provided in regulations, where appropriate.

Social commitment by all persons to promote equality

27. (1) Pursuant to section 26, all persons, non-governmental organisations,
community-based organisations and traditional institutions must promote equality
in their relationships with other bodies and in their public activities.

(2) The Minister must develop regulations in relation to this Act and other
Ministers may develop regulations in relation to other Acts which require companies,
closed corporations, partnerships, clubs, sports organisations, corporate entities
and associations, where appropriate, in a manner proportional to their size,
resources and influence, to prepare equality plans or abide by prescribed codes
of practice or report to a body or institution on measures to promote equality.

Special measures to promote equality with regard to race, gender and disability

28. (1) If it is proved in the prosecution of any offence that unfair
discrimination on the grounds of race, gender or disability played a part in
the commission of the offence, this must be regarded as an aggravating circumstance
for purposes of sentence.

(2) The South African Human Rights Commission must, in its report referred
to in section 15 of the Human Rights Commission Act, 1994 (Act No. 54 of 1994),
include an assessment on the extent to which unfair discrimination on the grounds
of race, gender and disability persists in the Republic, the effects thereof
and recommendations on how best to address the problems.

(3)

(a) The State, institutions performing public functions and all persons
have a duty and responsibility, in particular to--

(i) eliminate discrimination on the grounds of race, gender and disability;

(ii) promote equality in respect of race, gender and disability.

(b) In carrying out the duties and responsibilities referred to in
paragraph (a), the State, institutions performing public functions
and, where appropriate and relevant, juristic and non-juristic entities, must--

(i) audit laws, policies and practices with a view to eliminating all discriminatory
aspects thereof;

(ii) enact appropriate laws, develop progressive policies and initiate
codes of practice in order to eliminate discrimination on the grounds of
race, gender and disability;

(iii) adopt viable action plans for the promotion and achievement of equality
in respect of race, gender and disability; and

(iv) give priority to the elimination of unfair discrimination and the
promotion of equality in respect of race, gender and disability.

Illustrative list of unfair practices in certain sectors

29. (1) Without detracting from the generality of the provisions of
this Act, the Schedule to this Act is intended to illustrate and emphasise some
practices which are or may be unfair, that are widespread and that need to be
addressed.

(2) The State must, where appropriate, ensure that legislative and other measures
are taken to address the practices referred to in subsection (1).

(3) The Minister must, on the recommendation of the Equality Review Committee,
on an ongoing basis, assess the relevance of the practices contained in the
Schedule for purposes of expanding, altering, varying or amending the list of
practices in the Schedule.

(4) The Schedule is also intended to provide an illustrative list of practices
that are or may be unfair discrimination in order to--

(a) address and eliminate these practices; and

(b) assist persons in interpreting their experiences and practices.

(5) The illustrative list of practices in the Schedule is not conclusive and
must be considered and revised by the Equality Review Committee on a continuous
basis.

CHAPTER 6

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

Regulations

30. (1) The Minister may, and where required in the circumstances, must,
make regulations relating to--

(a) the procedures to be followed at or in connection with an inquiry
in terms of or under this Act, including the manner in which proceedings must
be instituted, the referral of matters contemplated in section 20 and the
hearing of urgent matters;

(b) the form of any application, authority, certificate, consent,
notice, order, process, register or subpoena to be made, given, issued or
kept in terms of or under this Act, and any other form required in carrying
out the provisions of this Act;

(c) the granting of legal aid at State expense in appropriate cases
in consultation with the Legal Aid Board;

(d) the appearance of persons on behalf of the parties to the proceedings
in court, which may include suitable persons other than attorneys or advocates;

(e) the appointment, powers, duties and functions of a clerk of an
equality court;

(f) the attendance of witnesses in cases arising from the application
of this Act and the payment of witness fees;

(g) the confirmation of court orders emanating from magistrates courts
sitting as equality courts as contemplated in section 19(3)(a);

(h) the procedure to be followed at, and criteria to be applied for,
the designation and registration of persons from the community who are suitable
and available to serve as assessors in each equality court;

(i) the method to be followed in respect of the allocation of assessors
in respect of proceedings in terms of or under this Act;

(j) the factors to be taken into account by an equality court when
deciding whether to summon assessors in the administration of justice;

(k) the taking of the oath or making an affirmation by assessors;

(l) the role of presiding officers and the procedure to be followed
in cases where an equality court is assisted by assessors;

(m) the recusal of assessors and the procedure to be followed in the
case of such recusal;

(n) a code of conduct for such assessors, and mechanisms for the enforcement
of the code of conduct, including the liability of an assessor if any provision
of the code of conduct is contravened by him or her;

(o) the establishment of a mechanism to deal with any grievance or
complaint by or against an assessor;

(p) the training of assessors;

(q) the payment of allowances to assessors;

(r) any other matter which is necessary to prescribe in order to regulate
the service of assessors in the equality courts;

(s) the procedures to be followed at or in connection with appeals
or reviews as contemplated in section 23;

(t) the reports contemplated in sections 25(3)(c) and 26(c)
and the equality plans contemplated in section 25(4)(b) and (5)(a)
and section 27(2);

(u) the translation of this Act into the official languages and the
distribution thereof as contemplated in section 31(2)(b);

(v) the powers and functions of the Equality Review Committee contemplated
in section 33;

(w) any matter required or permitted to be prescribed by regulation
under this Act;

(x) any other matter which is necessary to prescribe in order to achieve
the objects of this Act.

(2) Any regulation made under this section which may result in expenditure
for the State, must be made in consultation with the Minister of Finance.

(3) A regulation made under this section may provide that any person who contravenes
a provision thereof or fails to comply therewith is guilty of an offence and
on conviction is liable to a fine or to imprisonment for a period not exceeding
12 months.

(4)

(a) Any regulation made under this section must be tabled in Parliament
30 days before publication thereof in the Gazette, if Parliament is
then in session.

(b) If Parliament is not in session as contemplated in paragraph (a),
the regulations must be submitted to the Speaker of Parliament, 30 days before
publication thereof in the Gazette.

(5) The regulations made in terms of this section, and particularly subsection
(1)(a) relating to the procedure at an inquiry, must, as far as possible,
ensure that the application of the Act is simple, fair and affordable.

Implementation of Act

31. (1) Despite section 16(1)(a) and (b), and until the
Minister determines by notice in the Gazette, no proceedings may be instituted
in any court unless--

(a) a presiding officer is available who has been designated, by reason
of his or her training, experience, expertise and suitability in the field
of equality and human rights; and

(b) one or more trained clerks are available.

(2) For purposes of giving full effect to this Act and making the Act as accessible
as possible--

(a) and in giving effect to subsection (1), the Minister may designate
suitable magistrates, additional magistrates or judges, as the case may be,
and clerks referred to in subsection (1) as presiding officers and clerks,
respectively, for one or more equality courts;

(b) the Minister must make the Act available in all official languages
in the prescribed manner within a period of two years after the commencement
of this Act.

(3) The Minister must take all reasonable steps within the available resources
of the Department to designate at least one presiding officer and ensure that
a trained clerk is available for each court in the Republic.

(4) The Minister must, after consultation with the Magistrates Commission and
the Judicial Service Commission, issue policy directives and develop training
courses with a view to--

(a) establishing uniform norms, standards and procedures to be observed
by presiding officers and clerks in the performance of their functions and
duties and in the exercise of their powers; and

(b) building a dedicated and experienced pool of trained and specialised
presiding officers and clerks.

(5) The Minister must table a copy of any policy directive issued in terms
of subsection (4) in Parliament within a reasonable period after the finalisation
thereof.

CHAPTER 7

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

Establishment of Equality Review Committee

32. The Minister must, immediately, upon promulgation of this Act, by
notice in the Gazette, establish an Equality Review Committee and appoint
members, consisting of--

(a) a senior judicial officer with appropriate qualifications;

(b) the Chairperson of the South African Human Rights Commission;

(c) the Chairperson of the Commission on Gender Equality;

(d) a representative of civil society;

(e) an expert in the field of human rights, especially the right to
equality;

(f) a member of the National Assembly;

(g) a member of the National Council of Provinces.

Powers, functions and term of office of Equality Review Committee

33. (1) The Equality Review Committee--

(a) must advise the Minister about the operation of this Act;

(b) must advise the Minister about laws that impact on equality;

(c) must submit regular reports to the Minister on the operation of
the Act, addressing whether the objectives of the Act and the Constitution
have been achieved and must make recommendations on any necessary amendments
to the Act to improve its operation;

(d) has the other powers and functions as prescribed.

(2) The Equality Review Committee may conduct its business and proceedings
at its meetings as it deems fit.

(3) Members of the Equality Review Committee referred to in section 32(a),
(d) and (e) are appointed for a period of five years and may be
reappointed upon the expiry of their term of office.

(4) The other terms and conditions of appointment of members of the Equality
Review Committee are as prescribed.

(5) The administrative work connected with the performance of the functions
of the Equality Review Committee must be performed by officers designated by
the Director-General of the Department.

(6) The members of the Equality Review Committee are entitled to such remuneration,
allowances and other benefits as may be determined by the Minister in consultation
with the Minister of Finance.

Directive principle on HIV/AIDS, nationality, socio-economic status and
family responsibility and status

34. (1) In view of the overwhelming evidence of the importance, impact
on society and link to systemic disadvantage and discrimination on the grounds
of HIV/AIDS status, socio-economic status, nationality, family responsibility
and family status--

(a) special consideration must be given to the inclusion of these
grounds in paragraph (a) of the definition of prohibited grounds
by the Minister;

(b) the Equality Review Committee must, within one year, investigate
and make the necessary recommendations to the Minister.

(2) Nothing in this section--

(a) affects the ordinary jurisdiction of the courts to determine disputes
that may be resolved by the application of law on these grounds;

(b) prevents a complainant from instituting proceedings on any of
these grounds in a court of law;

(c) prevents a court from making a determination that any of these
grounds are grounds in terms of paragraph (b) of the definition of
prohibited grounds or are included within one or more of the grounds listed
in paragraph (a) of the definition of prohibited grounds.

Short title and commencement

35. (1) This Act is called the Promotion of Equality and Prevention
of Unfair Discrimination Act, 2000, and comes into operation on a date fixed
by the President by proclamation in the Gazette.

(2) Different dates may be so fixed in respect of different provisions of this
Act.